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Can Senator Feinstein Block The Appointment of Rachel Mitchell?

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As you know by now, Maricopa County (Arizona) sex crimes unit chief Rachel Mitchell has been deemed by Chuck Grassley and the Senate Judiciary Republicans as their front person to examine Dr. Christine Blasey Ford. From NBC News:

The woman chosen by Senate Judiciary Committee Republicans to question Supreme Court nominee Brett Kavanaugh’s accuser will be in an unusual position when she goes face-to-face with Christine Blasey Ford on Thursday.

Senate Judiciary Committee Chairman Chuck Grassley announced Tuesday that he hired Rachel Mitchell, an outside attorney to question Kavanaugh and Ford, on behalf of the 11 male Republicans on the committee — despite Ford’s wishes to be questioned by the senators themselves about her accusation that Kavanaugh sexually assaulted her when the two were teenagers.

So, the eleven old white men of the SJC want a female stand in to make their evisceration and shining on of putative kidnapping, sexual assault and attempted rape victim Dr. Ford. Because the optics the GOP men, and men are the only sex that has ever served for Republicans on SJC, looked too ugly for even them.

But is this unprecedented move, clearly designed with public optics and maximal humiliation of Dr. Ford even appropriate? Maybe not!

Now, I am not a Senate Rules expert, but a comment made me go do a little digging. Here is the text of the the most recent version of the United States Senate Standing Rules, Orders, Laws, And Resolutions. Here, specifically, is the section, contained in Chapter 43 thereof, in §4301(i)(3) relating to committee retention of consultants:

(3) With respect to the standing committees of the Senate, any such consultant or organization shall be selected by the chairman and ranking minority member of the committee, acting jointly. With respect to the standing committees of the House of Representatives, the standing com- mittee concerned shall select any such consultant or organization. The committee shall submit to the Committee on Rules and Administration in the case of standing committees of the Senate, and the Committee on House Oversight in the case of standing committees of the House of Representatives, information bearing on the qualifications of each consultant whose services are procured pursuant to this subsection, including organizations, and such information shall be retained by that committee and shall be made available for public inspection upon request. (Emphasis added)

So, Senator Feinstein, is this indeed the case? If so, why would you assent to appointment of a prosecutorial thug like Rachel Mitchell to examine the putative victim here, Dr. Ford?

Rachel Mitchell is currently head of the Sex Crimes Unit in the Maricopa County Attorney’s Office (MCAO). She has served under three heads of the MCAO, but she was elevated to her current position because she was an extremist who fit the desired bill by the notorious former MCAO head, Andrew Thomas. As you may recall, Andy Thomas not only had to leave the MCAO in disgrace, but subsequently was disbarred for his zealotry. And that kind of craven zealot is exactly who Rachel Mitchell identified with and was promoted by back in January of 2005. And is Mitchell always hard on sex criminals? No, in fact her past also includes sweetheart deals to abusive clergy members in politically charged cases.

Rachel Mitchell is one of the worst choices imaginable for the current task. It is a heinous move by Chuck Grassley and a direct and complete screw you to Dr. Ford and sexual abuse and rape victims across the United States and world.

And the “screw you” to victims is especially salient with the existence of additional putative victims of Brett Kavanaugh’s drunken debauchery. Not only is there Debbie Ramirez, who did not seek to come forward, but was located because friends and classmates of hers and Kavanaugh, while Kavanaugh was at Yale, started recalling her victimization and talking about it. Jane Mayer has more on that, not to mention her and Ronan Farrow’s original reporting on Ramirez.

And, just as of an hour or two ago, yet another troubling story of Brett Kavanaugh’s misogyny and conduct has been made public by her lawyer Michael Avenatti. Julie Swetnick has issued a sworn affidavit that is chilling. Swetnick is a A 1980 graduate of Gaithersburg High School in Gaithersburg, Maryland, and has has held multiple security clearances for work done at the Treasury Department, U.S. Mint, IRS, State Department and Justice Department. In short, she is a more than credible person who has put her statement under oath and penalty of perjury.

Here is her affidavit, and it is chilling. It describes what now seems obvious, Brett Kavanaugh and his friend Mark Judge were part of a group of a private boys school wilding gang that drank to excess regularly mistreated women. Judge and Kavanaugh were “joined at the hip” according to Swetnick. She further states:

There is more, much more, including descriptions of girls, including Ms. Swetnick herself, being knocked out with spiked punch and gang raped.

And that is where we find ourselves today. It appears that Senator Feinstein can put the kibosh on the craven hiring of a zealot prosecutorial thug like Rachel Mitchell and, further, can with the help of any and all Republican Senators of conscience, slow down this train wreck and investigate the claims and give a real hearing. That means someone among Jeff Flake, Lisa Murlowski, Susan Collins, or another, needs to step up and do the right thing. Will they? Will Senator Feinstein?

Within the last minute, Senator Feinstein has issued the following statement:

Washington—Following the release of a sworn affidavit from Julie Swetnick detailing new allegations of sexual assault by Brett Kavanaugh, all 10 Democratic members of the Senate Judiciary Committee today urged President Trump to immediately withdraw the nomination or order an FBI investigation into all allegations.

The senators wrote: “We are writing to request that you immediately withdraw the nomination of Brett Kavanaugh to be an Associate Justice on the Supreme Court or direct the FBI to re-open its background investigation and thoroughly examine the multiple allegations of sexual assault.

“Judge Kavanaugh is being considered for a promotion. He is asking for a lifetime appointment to the nation’s highest court where he will have the opportunity to rule on matters that will impact Americans for decades. The standard of character and fitness for a position on the nation’s highest court must be higher than this. Judge Kavanaugh has staunchly declared his respect for women and issued blanket denials of any possible misconduct, but those declarations are in serious doubt.”

That is a nice statement, but there appears to be so much more that Senator Feinstein can do Jeff Flake just took to the Senate Floor and, despite some words of empathy, wholeheartedly accepted that tomorrow’s sham hearing in SJC is all that there will ever be. While Flake appeared close to tears, he, as usual, said and intends to do nothing admirable and/or heroic.

It is a sad show we are watching. The hallowed halls of the Supreme Court deserve better, and so too do the American people.

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The Committee Playing Games with Perjury Referrals Swears They Can Make Mark Judge Tell the Truth without Testifying

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Chuck Grassley and the other Republicans on the Senate Judiciary Committee are still trying to push Christine Blasey Ford testimony through in time to vote Kavanaugh out of the committee next week. As part of that, a Grassley Counsel who asserted, “Unfazed and determined. We will confirm Judge Kavanaugh,” is also boasting about his tough questioning in lieu of a formal investigation. As part of that, SJC Republicans are asserting that they “obtained a statement under penalty of perjury” from Mark Judge, who really doesn’t want to testify, in part because he has written extensively about his own misogyny and alcohol abuse.

Right.

This is the committee, remember that referred Christopher Steele to the FBI for lying to the FBI, but that refuses to make Don Jr testify a second time to clarify problems with his testimony, much less refer him to FBI for lying about a second meeting at which he accepted election assistance from a foreign government (actually two: the Saudis and the Emirates).

Chuck Grassley has already demonstrated his view of lying to the committee: He’s perfectly okay with it, so long as helps Republicans.

So that statement from Mark Judge, without public testimony, is absolutely worthless.

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Manafort Turns State’s Evidence: “It’s Time for Some Game Theory”

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It took a day for the President to complain after his former campaign manager, having spent the week proffering up testimony, flipped on Friday. When he did, Trump tied the Mueller investigation to polls (and upcoming midterm elections) for the first time in a Tweet.

Of course, his freebie legal PR hack, Rudy Giuliani has been tying midterms to the investigation for some time in his insistence that no indictments can come between now and then. Rudy should be happy, then, that Paul Manfort’s plea avoids a four week trial for Trump’s campaign manager right in the middle of election season.

But he’s not.

I mean, at first, Rudy put a brave face on things Friday, claiming,

Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign. The reason: the President did nothing wrong and Paul Manafort will tell the truth.

But almost immediately after making that statement, Rudy took out the part about Manafort telling the truth.

Roger Stone, who’s shrewder than Rudy, immediately suggested anything Manafort may be saying (or may already have said) implicating him would be a lie.

I am uncertain of the details of Paul’s plea deal but certain it has no bearing on me since neither Paul Manafort or anyone else can testify truthfully that I am involved in Russian collusion, WikiLeaks collaboration or any other illegal act pertaining to the 2016 election.

Though of course, Stone’s seeming awareness that Mueller might pursue Manafort testimony about Stone reveals his brave comment for the lie it is.

I’m more interested, however, in Rudy’s (and John Dowd’s) apparent desperation to stave off a mass prisoner’s dilemma.

Manafort first proffered testimony Monday, September 10. Rudy was still boasting about how much he knew about Manafort’s thinking for a Thursday Politico story — though he based that off conversations before and after the EDVA trial, which had ended three weeks earlier.

Giuliani also confirmed that Trump’s lawyers and Manafort’s have been in regular contact and that they are part of a joint defense agreement that allows confidential information sharing.

“All during the investigation we have an open communication with them,” he said. “Defense lawyers talk to each other all the time, where, as long as our clients authorize it, therefore we have a better idea of what’s going to happen. That’s very common.”

Giuliani confirmed he spoke with Manafort’s lead defense lawyer Kevin Downing shortly before and after the verdicts were returned in the Virginia trial, but the former mayor wouldn’t say what he discusses with the Manafort team. “It’d all be attorney-client privilege, not just from our point of view but from theirs,” he said.

Immediately after Manafort’s cooperation was announced, both NPR and the same Politico team that had been quoting Rudy’s bravura reported that someone close to Manafort said there would be no cooperation against the President. In later stories, both quote Sarah Huckabee Sanders and Rudy claiming Manafort’s cooperation has nothing to do with the President.

Despite Manafort’s having led the campaign, the White House has sought to distance itself from him and his case.

“This had absolutely nothing to do with the president or his victorious 2016 presidential campaign,” press secretary Sarah Huckabee Sanders said Friday. “It is totally unrelated.”

Trump’s personal lawyer Rudy Giuliani echoed that idea, adding that “the president did nothing wrong.”

But the NPR version includes this correction.

Editor’s note: An early version of this story published before all the court documents in the case were available contained a characterization from a person familiar with the case that said Manafort’s cooperation would be limited. When charging documents and other materials appeared, they did not support that and the characterization was removed.

And the Politico noted how quickly Rudy backed off his claim that Manafort would testify truthfully.

Of course, anyone who has read the plea agreement closely — up to and including the government’s ability to declare Manafort in breach of the agreement with only a good faith rather than preponderance of the evidence standard —

— and it’s clear that if Mueller’s team wants Manafort to testify about Trump, he will.

Meanwhile, Rudy is yelling on Twitter that the morning shows aren’t taking his word about what Manafort is testifying about over what the clear text of the plea agreement suggests.

I’m more interested still that John Dowd emailed the lawyers for the (reportedly 37, though the number is likely smaller now) other witnesses in the Joint Defense Agreement, claiming outlandishly that Manafort has no evidence on Trump.

The President’s lawyers — the one who currently “works” for him for “free” and the one who allegedly doesn’t work for him anymore but recently got lionized in Woodward’s book as his main source about the Mueller investigation, and in that role was shown to be either an idiot or a fantasist, that the “free” one cites to claim that Woodward exonerates the President — are working very hard to convince others that Manafort’s plea deal doesn’t mean the calculation both other witnesses and the Republican party have been making has to change.

They’re trying to stave off an awful game of prisoner’s dilemma.

Consider if you’re one of the other 37 (which might be down to 34 given known cooperators, or maybe even fewer given how uncertain Rudy seems to be about Don McGahn’s third session of testimony) members of the Joint Defense Agreement, especially if you’re one who has already testified before the grand jury about matters that Manafort (and Gates) might be able to refute. So long as there’s no chance Trump will be touched, you’re probably still safe, as you can count on Trump rewarding those who maintain the omertà or at the very least working to kill the Mueller inquiry shortly after the election.

But if you have doubts about that — or concerns that other witnesses might have doubts about that — you still have an opportunity to recall the things you claimed you could not recall a year ago. Depending on how central your testimony is, you might even be able to slip in and fix your testimony unnoticed.

So each of 37 (or maybe just 30) people are considering whether they have to recalculate their decisions about whether to remain loyal to the President or take care of themselves.

Meanwhile, there’s the Republican party. Admittedly, the Republicans are unlikely to do anything until they rush through Brett Kavanaugh’s confirmation, even if doing so without first inquiring about the allegation that he assaulted a girl when he was in high school will damage their electoral prospects with women in November.

But once they’ve got Kavanaugh confirmed (assuming no big news breaks in the Mueller investigation before that), then the calculation may change. Right now, a lot of Republicans believe they have to stick with Trump through the election, if only to ensure the GOP base turns out. But if Trump’s poll numbers continue to sink — and as the numbers of those who strongly disapprove of Trump continue to grow — Republicans in certain kinds of districts (especially suburbs) will have an incentive to distance themselves from the President.

All that’s a straight calculation based on whether Trump will help or hurt more, come November. But the Republican party, from Trump’s endless repetition of “no collusion;” to Devin Nunes’ naked attempt to obstruct the Mueller investigation; to Chuck Grassley and Lindsey Graham’s referral of Christopher Steele rather than Don Jr for perjury charges; to Mark Meadows’ latest attempts to turn Lisa Page and Peter Strzok’s attempts to chase down someone leaking about Carter Page into a suggestion they themselves leaked; to Richard Burr’s cynical boasts that his committee hasn’t found stuff they wouldn’t chase down if they had been told of it, has invested everything on a gamble that Trump was telling the truth (or, more cynically, that he could stave off discovery of any conspiracy he entered into with Russia).

Republicans have invested a whole lot into attempting to give the President a clean bill of health.

Meanwhile, his campaign manager — a guy many of them have worked with — is presumably now doing the opposite, telling Mueller precisely what the Republicans have been working so hard to suppress for 18 months.

At some point, the ones who have been playing along even while admitting that the President probably did conspire with Russia (I know of some who believe that’s likely), will make their move.

If the GOP were less dysfunctional, they’d do it sooner rather than later, cut their losses with Trump to try to salvage the Pence presidency (whom they like far more anyway). But for now, that calculation of whether or not to do so is likely happening in private.

I’m in no way promising Manafort’s plea deal will set off two parallel floods of rats fleeing the Trump JDA or his presidency generally. These are Republicans, after all, and I’m sure they still would prefer obstructing the whole thing away.

I don’t think a mass abandonment of Trump is going to happen anytime soon.

But Trump’s lawyers do seem worried that could happen.

Trump needs his fellow Republicans to believe that Paul Manafort isn’t providing evidence that incriminates him. Because if they start to believe that, their calculations behind support for him may change, and change quickly.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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Why Would Don McGahn (and His Lawyer) Cooperate in a Piece Claiming He Cooperated with Mueller (on Obstruction)?

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As I laid out here, the latest NYT obstruct-a-palooza on Don McGahn “cooperating” with Robert Mueller spins what is probably a lawyer covering his own legal jeopardy with a claim of full cooperation.

But why did he (and his lawyer, William Burck) cooperate in it? Why spin a fanciful tale of being disloyal to your boss, even if it’s just to blame him for it before he blames you?

The most obvious answer is he’s trying to convince Mueller he’s not responsible for the legal shenanigans of (as the NYT continues to spin it) the obstruction of the investigation, or of the legal shenanigans of Trump generally.

There may well be an aspect of that, though I wouldn’t want to be (and hope I’m not) in a position where my legal jeopardy relied on how successfully I could spin Maggie and Mike, even if I were as expert at doing so as Don McGahn is.

A better answer may lie in this observation from my last post:

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Consider: the story Maggie and Mike (and Don McGahn’s lawyer) spin is that Don McGahn let Trump bully him around on some issues in early 2017, which led to some things that might look like obstruction of justice. An unfortunate occurrence, surely. But McGahn might be forgiven for fucking things up in early January 2017. After all, he was new to the whole White House Counseling thing; he had never worked in a White House before. Beginner’s mistake(s), you might call the long list of things he fucked up at the beginning of his tenure, which Maggie and Mike nod to but don’t describe in full resplendent glory.

His relationship with the president had soured as Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.

Don McGahn’s skills, it turns out, lie elsewhere.

While he has bolloxed most of the things White House Counsels are supposed to do (like keeping the White House out of legal and ethical trouble), he has had unsurpassed success at stacking the courts. I doubt there’s an ideological Republican in the country who isn’t thrilled with McGahn’s success at stacking the courts.

Update: Case in point.

Indeed (this becomes important in just a bit), McGahn’s success at stacking the courts is one of the biggest reasons why Republicans in Congress put up with the rest of Trump’s shit. Being President, for many Republicans, isn’t about governing; it’s about stacking the courts.

It turns out, though, that McGahn had another job before he became an expert court-stacker. For decades, Don McGahn has been one of the Republican party’s key campaign finance lawyers.

That’s how he grew to be close to Trump when, as Maggie and Mike describe,

McGahn joined the Trump team as an early hire said to like the candidate’s outsider position.

Don McGahn had come to prominence in the party at the NRCC and was rewarded for it with a seat on the FEC, where he made campaign finance more slushy.

But probably not slushy enough.

Here’s where Maggie and Mike’s failure to get an answer for whether longtime Republican campaign finance expert Don McGahn has been questioned about his role in the conspiracy with Russians to win the election (not to mention their failure to pin down when his third interview with Mueller’s team took place, after he happily revealed when the first two did) becomes important.

Don McGahn might be forgiven for bolloxing up the White House Counsel job. He was new at that (and he was busy, anyway, stacking the courts).

But at least three of the areas where Mueller’s team might find a conspiracy with Russia (or other foreigners) to win the election involve campaign finance issues — Don McGahn’s expertise. Those are:

  • Whether knowingly employing British Cambridge Analytica employees without getting them proper visas constitutes illegal foreign influence?
  • Whether accepting a Trump Tower meeting with Russians offering dirt on Hillary Clinton constitutes accepting a thing of value?
  • Whether the campaign was sufficiently firewalled from the  dodgy shit Roger Stone was doing (which has been a focus of the last six months of Mueller’s time)?

My wildarse guess is that campaign finance expert Don McGahn might find a way to finesse hiring foreign Cambridge Analytica employees. My wildarse guess is that campaign finance expert Don McGahn could claim ignorance about the illegal details of the Trump Tower and other foreign influence peddling meetings.

My wildarse guess is that campaign finance expert Don McGahn did not sufficiently firewall Stone off from the campaign. Especially given that he was involved in both incarnations of Stop the Steal — the effort to stamp down a convention rebellion, and the effort (which worked in parallel to a Russian one) to use claims of a “rigged” election to suppress Democratic voters. Especially given that he was loved in the Republican party for leaning towards slush over legal compliance.

Given how central campaign finance violations are in any question of a conspiracy with Russia, it is malpractice for Maggie and Mike to publish a story without determining whether — after being grilled by Mueller’s team for two days last fall about whether he fucked up White House Counseling — McGahn has more recently been grilled extensively about whether he fucked up campaign finance, the thing he got hired for in the first place. The thing he’s supposed to be an expert in.

But Maggie and Mike believe Trump is only being investigated for obstruction, so seeding a big puff piece with them is a sure bet you won’t get asked about your obviously central role (or not) in any conspiracy involving campaign finance.

That’s just part of a potential explanation for why Don McGahn (and his lawyer) would seed a big puff piece with Maggie and Mike, making it look like McGahn had cooperated a lot on something he was never an expert in — White House Counseling — but remaining utterly silent on whether he cooperated on something he is undoubtedly an expert in (even if he tends to prefer slush to law). Better to get in trouble for cooperating on the stuff Trump and his lawyers have been successfully distracting with for the last six months rather than cooperating with prosecutors on a case about conspiring with Russian spies to win an election, the stuff that will elicit cries of Treason and with it badly tarnish the Republican party.

Then there’s this, the last great court-stack. Numerous people have noted, but Maggie and Mike did not, even while noting that McGahn is in the middle of a SCOTUS fight:

Mr. McGahn is still the White House counsel, shepherding the president’s second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

William Burck, McGahn’s lawyer, is his partner-in-crime in his last great court-stack.

When Trump (presumably based on the advice of his chief court-stacker, Don McGahn) nominated Brett Kavanaugh to the Supreme Court, people (including Mitch McConnell) warned him of the danger of nominating someone with such an extensive paper record. Nevertheless, Republicans started with an assumption that that record would be made public. Until July 24, when Republicans had a private meeting and realized they had to suppress Kavanaugh’s record as White House Staff Secretary.

It is not surprising then, that on July 19, 2018, while discussing preparations for Judge Kavanaugh’s confirmation hearing, Senator Cornyn — the Majority Whip and a senior member of the Judiciary Committee — said that the production of documents Judge Kavanaugh had “generated . . . authored…or contributed to” during his tenure as White House Staff Secretary should be produced to the Committee.  He stated that it “just seems to be common sense.”

However, less than a week later, following a White House meeting with you on the records production on July 24, the Republican position abruptly and inexplicably shifted.  Since that meeting, Senate Republicans refused to request any and all documents from Judge Kavanaugh’s three years as White House Staff Secretary, regardless of authorship.  Immediately after the meeting, Senator Cornyn described requesting any Staff Secretary records as “a bridge too far.”  Days later, Chairman Chuck Grassley submitted a records request to the National Archives and Records Administration (NARA) and omitted any of Judge Kavanaugh’s records as Staff Secretary.

Since then, William Burck has taken time away from representing Don McGahn and Reince Priebus and Steve Bannon to personally suppress lots of Kavanaugh’s records as White House Staff Secretary. And Chuck Grassley has moved up Kavanaugh’s confirmation process to make sure that some of production being slow-rolled by Don McGahn’s lawyer will not be release before Kavanaugh gets a vote on a lifetime appointment.

There’s clearly something in Kavanaugh’s record as White House Staff Secretary that might lead Susan Collins or Lisa Murkowski to vote against Kavanaugh — or make the entire nomination toxic in time for the mid-terms.

Mind you, whether Don McGahn’s failures on the topic he is supposed to be an expert on, campaign finance, contribute to getting the President’s lackeys indicted for a conspiracy may not directly relate to his last great hurrah in stacking the courts, solidifying a regressive majority on SCOTUS for a generation and with it adding someone who will suppress this investigation.

Then again it might.

Most Republicans, I suspect, will one day become willing to jettison Trump so long as they can continue stacking the courts. Trump, one day, may be expendable so long as McGahn’s expertise at stacking the court holds sway. At that level, McGahn’s political fortunes may actually conflict with Trump’s.

But not if he (and his lawyer) fuck up the last great court-stack. Not if they get blamed for failing on McGahn’s area of expertise — campaign finance — and in so doing lead to a delay in and with it the demise of the Kavanaugh confirmation.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

 

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Did the FBI Have a Chance to Fix Their Lies about Encryption in 2016?

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The WaPo reports that the FBI has been presenting grossly inflated numbers describing how many devices it can’t open because of encryption. The error stems, the FBI claims, to a “programming” error that actually sounds like an analytical error: the double or triple counting of the same encrypted phones.

Over a period of seven months, FBI Director Christopher A. Wray cited the inflated figure as the most compelling evidence for the need to address what the FBI calls “Going Dark” — the spread of encrypted software that can block investigators’ access to digital data even with a court order.

The FBI first became aware of the miscount about a month ago and still does not have an accurate count of how many encrypted phones they received as part of criminal investigationslast year, officials said. Last week, one internal estimate put the correct number of locked phones at 1,200, though officials expect that number to change as they launch a new audit, which could take weeks to complete, according to people familiar with the work.

“The FBI’s initial assessment is that programming errors resulted in significant over-counting of mobile devices reported,’’ the FBI said in a statement Tuesday. The bureau said the problem stemmed from the use of three distinct databases that led to repeated counting of phones. Tests of the methodology conducted in April 2016 failed to detect the flaw, according to people familiar with the work.

I find the April 2016 failed test suspicious.

To know why, consider this bit of history. Back in 2015, in the wake of Apple making encryption standard, Jim Comey and Sally Yates made a big pitch for back doors. But when Al Franken asked them, they admitted the FBI didn’t actually know how big the problem is.

Over an hour and a quarter into the SJC hearing, Al Franken asked for actual data demonstrating how big of a problem encryption really is. Yates replied that the government doesn’t track this data because once an agency discovers they’re targeting a device with unbreakable encryption, they use other means of targeting. (Which seems to suggest the agencies have other means to pursue the targets, but Yates didn’t acknowledge that.) So the agencies simply don’t count how many times they run into encryption problems. “I don’t have good enough numbers yet,” Comey admitted when asked again at the later hearing about why FBI can’t demonstrate this need with real data.

Nevertheless, in spite of Congress’ request for real numbers in July 2015, in January 2016 — just as some at FBI were trying to create an excuse to force Apple to open Syen Rizwan Farook’s phone — Comey and Yates admitted they still hadn’t started tracking numbers.

Around January 26, 2016 (that’s the date shown for document creation in the PDF) — significantly, right as FBI was prepping to go after Syed Rizwan Farook’s phone, but before it had done so — Comey and Yates finally answered the Questions for the Record submitted after the hearing. After claiming, in a response to a Grassley question on smart phones, “the data on the majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” Comey then explained that they do not have the kind of statistical information Cy Vance claims to keep on phones they can’t access, explaining (over five months after promising to track such things),

As with the “data-in-motion” problem, the FBI is working on improving enterprise-wide quantitative data collection to better explain the “data-at-rest” problem.”

[snip]

As noted above, the FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the “data at rest” problem. This process includes adopting new business processes to help track when devices are encountered that cannot be decrypted, and when we believe leads have been lost or investigations impeded because of our inability to obtain data.

[snip]

We agree that the FBI must institute better methods to measure these challenges when they occur.

[snip]

The FBI is working to identify new mechanisms to better capture and convey the challenges encountered with lawful access to both data-in-motion and data-at =-rest.

Grassley specifically asked Yates about the Wiretap report. She admitted that DOJ was still not collecting the information it promised to back in July.

The Wiretap Report only reflects the number of criminal applications that are sought, and not the many instances in which an investigator is dissuaded from pursuing a court order by the knowledge that the information obtained will be encrypted and unreadable. That is, the Wiretap Report does not include statistics on cases in which the investigator does not pursue an interception order because the provider has asserted that an intercept solution does not exist. Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time, and the review process is extensive. It is not prudent for agents and prosecutors to devote resources to this task if they know in advance the targeted communications cannot be intercepted. The Wiretap Report, which applies solely to approved wiretaps, records only those extremely rare instances where agents and prosecutors obtain a wiretap order and are surprised when encryption prevents the court-ordered interception. It is also important to note that the Wiretap Report does not include data for wiretaps authorized as part of national security investigations.

These two answers lay out why the numbers in the Wiretap Report are of limited value in assessing how big a problem encryption is.

Significantly, Comey and Yates offered these answers in response to a Chuck Grassley question about whether they believed, as the corrupt Cy Vance had claimed in Senate testimony, that “71% of all mobile devices examined…may be outside the reach of a warrant.”

The number FBI is now trying to correct was “more than half,” inching right up towards that 71% Vance floated years ago. In other words, this faulty methodology got them to where they needed to go.

I find that all the more suspicious given something that happened later in 2016. As soon as Jim Comey started providing numbers in August 2016, back when they showed 13% of phones could not be accessed, I asked how FBI came up with the number. At the time, a spox admitted that the number included more than encrypted phones — it also included deleted or destroyed phones.

It is a reflection of data on the number of times over the course of each quarter this year that the FBI or one of our law enforcement partners (federal, state, local, or tribal) has sought assistance from FBI digital forensic examiners with respect to accessing data on various mobile devices where the device is locked, data was deleted or encrypted, the hardware was damaged, or there were other challenges with accessing the data. I am not able to break that down by crime type.

That is, in September 2016, five months after FBI failed to find their flawed methodology, an FBI spox told me the number used was not an accurate count of how many phones couldn’t be accessed because of encryption.

When then FBI General Counsel James Baker used the same 13% a few months later, claiming all were encrypted, I checked back. The same spox said the number at that point was just encrypted phones.

It is true that damaged devices are provided to CART and RCFL for FBI assistance, but the 886 devices in FY16 that the FBI was not able to access (which is the number that GC Baker provided last week), does not include those damaged devices. It includes only those devices for which we encountered a password we were not able to bypass.

Now, it’s possible that the methodological problem I identified in 2016 — that their “Going Dark” number actually included phones they couldn’t access for entirely different reasons — was a different problem than the one just identified a month ago (just before Baker retired). Certainly, it doesn’t sound like the same problem (though as I reminded someone from DOJ’s IG some time ago, the forensics labs sending in these numbers have a history of unreliable numbers). That said, given the proliferation of chat apps with disappearing messages that amount to “destroyed” evidence — which under the flawed methodology used in 2016 would be counted as an encryption problem — it could be.

Still, what I identified in September 2016 was a methodological problem. It should have triggered a closer look at the time.

Instead, the FBI has been lying about how bad the Going Dark problem is for another year and a half.

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The Sekulow Questions, Part Five: Attempting a Cover-Up by Firing Comey

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In this series, I have been showing a framework for the investigation that the Mueller questions, as imagined by Jay Sekulow, maps out. Thus far I have shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him.

This post lays out the questions on obstruction that lead up to Comey’s firing on May 9, 2017.

February 14, 2017: What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?

On February 13, Trump fired Mike Flynn. The explanation he gave was one of the concerns Sally Yates had given to Don McGahn when she told him about the interview, that Flynn had lied to Mike Pence about having discussed sanctions relief with Sergey Kislyak on December 29, 2016. Except, coming from Trump, that excuse makes no sense, both because he had already shown he didn’t care about the counterintelligence implications of that lie by including Flynn in the January 28 phone call with Putin and other sensitive meetings. But also because at least seven people in the White House knew what occurred in Flynn’s calls, and Pence probably did too.

Against that backdrop, the next day, Trump had Jim Comey stay late after an oval office meeting so he could ask him to drop the investigation into Flynn. Leading up to this meeting, Trump had already:

  • Asked Comey to investigate the pee tape allegations so he could exonerate the President
  • Asked if FBI leaks
  • Asked if Comey was loyal shortly after asking him, for the third time, if he wanted to keep his job
  • Claimed he distrusted Flynn’s judgment because he had delayed telling Trump about a congratulatory call from Putin

After Trump asked everyone in the meeting to leave him and Comey alone, both Jeff Sessions and Jared Kushner lingered.

While the description of this meeting usually focuses on the Flynn discussion, according to Comey’s discussion, it also focused closely on leaks, which shows how Trump linked the two in his mind.

Here’s what Comey claims Trump said about Flynn:

He began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he described as “a good guy.” He explained that he just couldn’t have Flynn misleading the vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

[a discussion of Sean Spicer’s presser explaining the firing and another about the leaks of his calls to Mexican and Australian leaders]

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

[Comey’s agreement with Trump about the problem with leaks, but also his explanation that the leaks may not have been FBI; Reince Priebus tries to interrupt but Trump sends him away for a minute or two]

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong on the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

In addition to providing Trump an opportunity to rebut Comey, asking this question might aim to understand the real reason Trump fired Flynn.

March 2, 2017: What did you think and do regarding the recusal of Mr. Sessions?  What efforts did you make to try to get him to change his mind? Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?

On March 2, citing consultations with senior department officials, Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” while noting that, “This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.” At that point, Dana Boente became Acting Attorney General for the investigation.

Note that this question isn’t just about Trump’s response to Sessions’ recusal — it’s also about what he did in advance of it. That’s likely because even before Sessions recused, Trump got Don McGahn to try to pressure the Attorney General not to do so. He also called Comey the night before and “talked about Sessions a bit.” When Sessions ultimately did recuse, Trump had a blow-up in which he expressed a belief that Attorneys General should protect their president.

[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Mr. Trump then asked, “Where’s my Roy Cohn?”

In the days after the Sessions recusal, Trump also kicked off the year-long panic about being wiretapped.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

Don McGahn and Jeff Sessions, among others, have already provided their side of this story to Mueller’s team.

March 2 to March 20, 2017: What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?

As Sekulow has recorded Mueller’s question, the special counsel wants to know what Trump already knew of the investigation into Mike Flynn before Comey publicly confirmed it in Congressional testimony. This may be a baseline question, to measure how much of Trump’s response was a reaction to the investigation becoming public.

But there are other things that went down in the weeks leading up to Comey’s testimony. Devin Nunes had already made considerable efforts to undermine the investigation; he would have been briefed on the investigation on March 2 (see footnote 75), the same day as Sessions recused.Trump went into a panic on March 4, just days after Sessions recusal, about being wiretapped; I’m wondering if there’s any evidence that Trump or Steven Bannon seeded the Breitbart story that kicked off the claim of a coup against Trump. Also of note is Don McGahn’s delay in conveying the records retention request about the investigation to the White House, even as Sean Spicer conducted a device search to learn who was using encrypted messengers.

March 20, 2017: What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.

On March 20, in testimony to the House Intelligence Committee, Comey publicly confirmed the counterintelligence investigation into Trump’s campaign.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In addition to questions about the investigation (including the revelation that FBI had not briefed the Gang of Eight on it until recently; we now know the briefing took place the day Jeff Sessions recused which suggests FBI avoided letting both Flynn and Sessions know details of it), Republicans used the hearing to delegitimize unmasking and the IC conclusion that Putin had affirmatively supported Trump.

Sekulow’s questions (or NYT’s rendition of them) lump the hearing, at which Admiral Mike Rogers also testified, in with Trump’s pressure on his spooks to issue a statement that he wasn’t under investigation. Two days after the hearing, Trump pressured Mike Pompeo and Dan Coats to intervene with Comey to stop the investigation.

It’s possible that the term “intelligence officials” includes HPSCI Chair Devin Nunes. On March 21, Nunes made his nighttime trip to the White House to accelerate the unmasking panic. Significantly, the panic didn’t just pertain to Flynn’s conversations with Sergey Kislyak; it also focused on the revelation of Mohammed bin Zayed al Nahyan’s secret trip to New York and probably other conversations with the Middle Eastern partners that have become part of this scandal.

The day after Nunes’ nighttime trip, Trump called Coats and Rogers (and probably Pompeo) and asked them to publicly deny any evidence of a conspiracy between Trump’s campaign and Russia; NSA documented the call to Rogers.

It’s now clear that the calls Nunes complained about being unmasked actually are evidence of a conspiracy (and as such, they probably provided an easy roadmap for Mueller to find the non-Russian conversations).

March 30, 2017: What was the purpose of your call to Mr. Comey on March 30?

On March 30, Trump called Comey on official phone lines and asked him to exonerate him on the Russia investigation. According to Comey, the conversation included the following:

He then said he was trying to run the country and the cloud of this Russia business was making that difficult. He said he thinks he would have won the health care vote but for the cloud. He then went on at great length, explaining that he has nothing to do with Russia (has a letter from the largest law firm in DC saying he has gotten no income from Russia). was not involved with hookers in Russia (can you imagine me, hookers? I have a beautiful wife, and it has been very painful). is bringing a personal lawsuit against Christopher Steele, always advised people to assume they were being recorded in Russia. has accounts now from those who travelled with him to Miss Universe pageant that he didn’t do anything, etc.

He asked what he could do to lift the cloud. I explained that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work. He agreed, but then returned to the problems this was causing him, went on at great length about how bad he was for Russia because of his commitment to more oil and more nukes (ours are 40 years old).

He said something about the hearing last week. I responded by telling him I wasn’t there as a volunteer and he asked who was driving that, was it Nunes who wanted it? I said all the leadership wanted to know what was going on and mentioned that Grassley had even held up the DAG nominee to demand information. I said we had briefed the leadership on exactly what we were doing and who we were investigating.

I reminded him that I had told him we weren’t investigating him and that I had told the Congressional leadership the same thing. He said it would be great if that could get out and several times asked me to find a way to get that out.

He talked about the guy he read about in the Washington Post today (NOTE: I think he meant Sergei Millian) and said he didn’t know him at all. He said that if there was “some satellite” (NOTE: I took this to mean some associate of his or his campaign) that did something, it would be good to find that out, but that he hadn’t done anything and hoped I would find a way to get out that we weren’t investigating him.

Trump also raised “McCabe thing,” yet another apparent attempt to tie the retention of McCabe to public exoneration from Comey.

Given the news that Sergei Millian had been pitching George Papadopoulos on a Trump Tower deal in the post-election period, I wonder whether Trump’s invocation of him in conjunction with “some satellite” is a reference to Papadopoulos, who had already been interviewed twice by this time. Nunes would have learned of his inclusion in the investigation in the March 2 CI briefing.

On top of the clear evidence that this call represented a (well-documented, including a contemporaneous call to Dana Boente) effort to quash the investigation and get public exoneration, the conversation as presented by Comey also includes several bogus statements designed to exonerate him. For example, Millian had actually worked with Trump in past years selling condos to rich Russians. Trump never did sue Steele (Michael Cohen sued BuzzFeed and Fusion early this year, but he dropped it in the wake of the FBI raid on him). And the March 8 letter from Morgan Lewis certifying he didn’t get income from Russia is unrelated to whether he has been utterly reliant on investment from Russia (to say nothing of the huge sums raised from Russian oligarchs for his inauguration). In other words, like the earlier false claim that Trump hadn’t stayed overnight in Moscow during the Miss Universe pageant and therefore couldn’t have been compromised, even at this point, Trump’s attempts to persuade the FBI he was innocent were based off false claims.

March 30, 2017: Flynn asks for immunity

Mike Flynn first asked Congress for immunity on March 30, 2017, with Trump backing the effort in a tweet.

A later question deals with this topic — and suggests Trump may have contacted Flynn directly about immunity at this time, but that contact is not public, if it occurred.

April 11, 2017: What was the purpose of your call to Mr. Comey on April 11, 2017?

At 8:26AM on April 11, Comey returned a call to Trump. Trump asked again for Comey to lift the cloud on him.

He said he was following up to see if I did what he had asked last time–getting out that he personally is not under investigation. I relied that I had passed the request to the Acting AG and had not heard back from him. He spoke for a bit about why it was so important. He is trying to do work for the country, visit with foreign leaders, and any cloud, even a little cloud gets in the way of that. They keep bringing up the Russia thing as an excuse for losing the election.

[snip]

He then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

[snip]

He then said that I was doing a great job and wished me well.

April 11, 2017: What was the purpose of your April 11, 2017, statement to Maria Bartiromo?

On April 12, Fox Business News broadcast an interview with Maria Bartiromo (Mueller must know it was recorded on April 11, so presumably after the call with Comey). There are three key aspects of the interview. First, in the context of Trump’s failures to staff his agencies, Bartiromo asks why Comey is still around [note, I bet in Hope Hicks’ several days of interviews, they asked her if these questions were planted]. Given public reports, Trump may have already been thinking about firing Comey, though Steve Bannon, Reince Priebus, and Don McGahn staved off the firing for weeks.

TRUMP:  I wish it would be explained better, the obstructionist nature, though, because a lot of times I’ll say why doesn’t so and so have people under him or her?

The reason is because we can’t get them approved.

BARTIROMO:  Well, people are still wondering, though, they’re scratching their heads, right, so many Obama-era staffers are still here.

For example, was it a mistake not to ask Jim Comey to step down from the FBI at the outset of your presidency?

Is it too late now to ask him to step down?

TRUMP:  No, it’s not too late, but, you know, I have confidence in him.  We’ll see what happens.  You know, it’s going to be interesting.

On the same day he had asked Comey to publicly state he wasn’t being interviewed, Trump said he still had confidence in Comey, even while suggesting a lot of other people were angling for the job (something he had also said in an earlier exchange with Comey).  Trump immediately pivoted to claiming Comey had kept Hillary from being charged.

TRUMP: But, you know, we have to just — look, I have so many people that want to come into this administration.  They’re so excited about this administration and what’s happening — bankers, law enforcement — everybody wants to come into this administration.  Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey [one].  And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK.  But he — she wasn’t OK, because she was guilty on every charge.

And then you had two and then you had three.

But Hillary Clinton won — or Comey won.  She was guilty on every charge.

BARTIROMO:  Yes.

TRUMP:  So Director Comey…

BARTIROMO:  Well, that’s (INAUDIBLE)…

TRUMP:  No, I’m just saying…

BARTIROMO:  (INAUDIBLE)?

TRUMP:  Well, because I want to give everybody a good, fair chance.  Director Comey was very, very good to Hillary Clinton, that I can tell you.  If he weren’t, she would be, right now, going to trial.

From there, Bartiromo asks Trump why President Obama had changed the rules on sharing EO 12333 data. Trump suggests it is so his administration could be spied on, using the Susan Rice unmasking pseudo scandal as shorthand for spying on his team.

BARTIROMO:  Mr. President, just a final question for you.

In the last weeks of the Obama presidency, he changed all the rules in terms of the intelligence agencies, allowing them to share raw data.

TRUMP:  Terrible.

BARTIROMO:  Why do you think he did this?

TRUMP:  Well, I’m going to let you figure that one out.  But it’s so obvious.  When you look at Susan Rice and what’s going on, and so many people are coming up to me and apologizing now.  They’re saying you know, you were right when you said that.

Perhaps I didn’t know how right I was, because nobody knew the extent of it.

Undoubtedly, Mueller wants to know whether these comments relate to his comments to Comey (and, as I suggested, Hope Hicks may have helped elucidate that). The invocation of Hillary sets up one rationale for firing Comey, but one that contradicts with the official reason.

But the conversation also reflects Trump’s consistent panic that his actions (and those of his aides) will be captured by wiretaps.

May 3, 2017: What did you think and do about Mr. Comey’s May 3, 2017, testimony?

On May 3, Comey testified to the Senate Judiciary Committee. It covered leaks (including whether he had ever authorized any, a question implicated in the Andrew McCabe firing), and the hacked email raising questions about whether Lynch could investigate Hillary. Comey described his actions in the Hillary investigation at length. This testimony would be cited by Rod Rosenstein in his letter supporting the firing of Comey. In addition, there were a number of questions about the Russia investigation, including questions focused on Trump, that would have driven Trump nuts.

Along with getting a reaction to the differences between what Comey said in testimony and Trump’s own version (which by this point he had shared several times), Mueller likely wants to know what Trump thinks of Comey’s claim that FBI treated the Russian investigation just like the Hillary one.

With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating. And I would expect, we’re not going to say another peep about it until we’re done. And I don’t know what will be said when we’re done, but that’s the way we handled the Clinton investigation as well.

In a series of questions that were likely developed in conjunction with Trump, Lindsey Graham asked whether Comey stood by his earlier claim that there was an active investigation.

GRAHAM: Did you ever talk to Sally Yates about her concerns about General Flynn being compromised?

COMEY: I did, I don’t whether I can talk about it in this forum. But the answer is yes.

GRAHAM: That she had concerns about General Flynn and she expressed those concerns to you?

COMEY: Correct.

GRAHAM: We’ll talk about that later. Do you stand by your house testimony of March 20 that there was no surveillance of the Trump campaign that you’re aware of?

COMEY: Correct.

GRAHAM: You would know about it if they were, is that correct?

COMEY: I think so, yes.

GRAHAM: OK, Carter Page; was there a FISA warrant issued regarding Carter Page’s activity with the Russians.

COMEY: I can’t answer that here.

GRAHAM: Did you consider Carter page a agent of the campaign?

COMEY: Same answer, I can’t answer that here.

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

Curiously (not least because of certain investigative dates), Sheldon Whitehouse asked some pointed questions about whether Comey could reveal if an investigation was being starved by inaction.

WHITEHOUSE: Let’s say you’ve got a hypothetically, a RICO investigation and it has to go through procedures within the department necessary to allow a RICO investigation proceed if none of those have ever been invoked or implicated that would send a signal that maybe not much effort has been dedicated to it.

Would that be a legitimate question to ask? Have these — again, you’d have to know that it was a RICO investigation. But assuming that we knew that that was the case with those staging elements as an investigation moves forward and the internal department approvals be appropriate for us to ask about and you to answer about?

COMEY: Yes, that’s a harder question. I’m not sure it would be appropriate to answer it because it would give away what we were looking at potentially.

WHITEHOUSE: Would it be appropriate to ask if — whether any — any witnesses have been interviewed or whether any documents have been obtained pursuant to the investigation?

Richard Blumenthal asked Comey whether he could rule Trump in or out as a target of the investigation and specifically within that context, suggested appointing a special counsel (Patrick Leahy had already made the suggestion for a special counsel).

BLUMENTHAL: Have you — have you ruled out the president of the United States?

COMEY: I don’t — I don’t want people to over interpret this answer, I’m not going to comment on anyone in particular, because that puts me down a slope of — because if I say no to that then I have to answer succeeding questions. So what we’ve done is brief the chair and ranking on who the U.S. persons are that we’ve opened investigations on. And that’s — that’s as far as we’re going to go, at this point.

BLUMENTHAL: But as a former prosecutor, you know that when there’s an investigation into several potentially culpable individuals, the evidence from those individuals and the investigation can lead to others, correct?

COMEY: Correct. We’re always open-minded about — and we follow the evidence wherever it takes us.

BLUMENTHAL: So potentially, the president of the United States could be a target of your ongoing investigation into the Trump campaign’s involvement with Russian interference in our election, correct?

COMEY: I just worry — I don’t want to answer that — that — that seems to be unfair speculation. We will follow the evidence, we’ll try and find as much as we can and we’ll follow the evidence wherever it leads.

BLUMENTHAL: Wouldn’t this situation be ideal for the appointment of a special prosecutor, an independent counsel, in light of the fact that the attorney general has recused himself and, so far as your answers indicate today, no one has been ruled out publicly in your ongoing investigation. I understand the reasons that you want to avoid ruling out anyone publicly. But for exactly that reason, because of the appearance of a potential conflict of interest, isn’t this situation absolutely crying out for a special prosecutor?

Chuck Grassley asked Comey the first questions about what would become the year-long focus on Christopher Steele’s involvement in the FISA application on Carter Page.

GRASSLEY: On — on March 6, I wrote to you asking about the FBI’s relationship with the author of the trip — Trump-Russia dossier Christopher Steele. Most of these questions have not been answered, so I’m going to ask them now. Prior to the bureau launching the investigation of alleged ties between the Trump campaign and Russia, did anyone from the FBI have interactions with Mr. Steele regarding the issue?

COMEY: That’s not a question that I can answer in this forum. As you know, I — I briefed you privately on this and if there’s more that’s necessary then I’d be happy to do it privately.

GRASSLEY: Have you ever represented to a judge that the FBI had interaction with Mr. Steele whether by name or not regarding alleged ties between the Trump campaign and Russia prior to the Bureau launching its investigation of the matter?

COMEY: I have to give you the same answer Mr. Chairman.

In a second round, Whitehouse asked about a Trump tweet suggesting Comey had given Hillary a free pass.

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, “a free pass for many bad deeds?” There was a tweet to that effect from the president.

COMEY: Oh, no, not — that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been?

COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

Al Franken asked Comey whether the investigation might access Trump’s tax returns.

FRANKEN: I just want to clarify something — some of the answers that you gave me for example in response to director — I asked you would President Trump’s tax returns be material to the — such an investigation — the Russian investigation and does the investigation have access to President Trump’s tax returns and some other questions you answered I can’t say. And I’d like to get a clarification on that. Is it that you cant say or that you can’t say in this setting?

COMEY: That I won’t answer questions about the contours of the investigation. As I sit here I don’t know whether I would do it in a closed setting either. But for sure — I don’t want to begin answering questions about what we’re looking at and how.

Update: Contemporaneous reporting makes it clear that Trump was particularly irked by Comey’s admission that “It makes me mildly nauseous to think that we might have had some impact on the election,” as that diminished Trump’s win. (h/t TC)

May 9, 2017: Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?

The May 3 hearing is reportedly the precipitating event for Trump heading to Bedminster with Ivanka, Jared, and Stephen Miller on May 4 and deciding to fire Comey. Trump had Miller draft a letter explaining the firing, which Don McGahn would significantly edit when he saw it on May 8. McGahn also got Sessions and Rosenstein, who were peeved about different aspects of the hearing (those focused on Comey’s actions with regards to Hillary), to write letters supporting Comey’s firing.

Given that Mueller has the original draft of the firing letter and testimony from McGahn, Rosenstein, and Sessions, this question will largely allow Trump to refute evidence Mueller has already confirmed.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

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Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

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The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

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Oleg Deripaska Gets Ahead of His Own Fusion Dossier (and Manafort Prosecution?) Disclosures

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Sometime Paul Manafort client and owner Oleg Deripaska just did a column in the Daily Caller insinuating the Mueller investigation is a Deep State attack on good aluminum smelters like him — though the column seems as much an effort to get ahead of disclosures about his own tie to the Steele dossier or Manafort trial as anything else. 

Chuck Grassley throws breadcrumbs about others tied to the Steele dossier, including Oleg Deripaska

For weeks, I’ve been waiting to learn why Chuck Grassley asked Democrats about the role of a number of people in the Fusion dossier, including Victoria Nuland, former SSCI staffer Dan Jones, and Oleg Deripaska.

Look, now, at this detail from the letters Chuck Grassley sent out to the DNC, its top officials, and the Hillary campaign, and its top officials, trying to find out how much they knew about and used the dossier. Grassley also asks for any communications to, from, or relating to the following (I’ve rearranged and classified them).

Fusion and its formal employees: Fusion GPS; Bean LLC; Glenn Simpson; Mary Jacoby; Peter Fritsch; Tom Catan; Jason Felch; Neil King; David Michaels; Taylor Sears; Patrick Corcoran; Laura Sego; Jay Bagwell; Erica Castro; Nellie Ohr;

Fusion researcher who worked on both the Prevezon and Democratic projects:Edward Baumgartner;

Anti-Magnitsky lobbyists: Rinat Akhmetshin; Ed Lieberman;

Christopher Steele’s business and colleagues: Orbis Business Intelligence Limited; Orbis Business International Limited.; Walsingham Training Limited; Walsingham Partners Limited; Christopher Steele; Christopher Burrows; Sir Andrew Wood,

Hillary-related intelligence and policy types: Cody Shearer; Sidney Blumenthal; Jon Winer; Kathleen Kavalec; Victoria Nuland; Daniel Jones;

DOJ and FBI: Bruce Ohr; Peter Strzok; Andrew McCabe; James Baker; Sally Yates; Loretta Lynch;

Grassley, like me, doesn’t believe Brennan was out of the loop either: John Brennan

Oleg Deripaska and his lawyer: Oleg Deripaska; Paul Hauser;

It’s the last reference I’m particularly interested in.

When Simpson talked about how the dossier got leaked to BuzzFeed, he complains that, “I was very upset. I thought it was a very dangerous thing and that someone had violated my confidences, in any event.” The presumed story is that John McCain and his aide David Kramer were briefed by Andrew Wood at an event that Rinat Akhmetshin also attended, later obtained the memo (I’m still not convinced this was the full memo yet), McCain shared it, again, with the FBI, and Kramer leaked it to Buzzfeed.

But Grassley seems to think Russian oligarch Oleg Deripaska was in on the loop of this. Deripaska is important to this story not just for because he owns Paul Manafort (he figures heavily in this worthwhile profile of Manafort). But also because he’s got ties, through Rick Davis, to John McCain. This was just rehashed last year by Circa, which has been running interference on this story.

There is a report that Manafort laid out precisely the strategy focusing on the dossier that is still the main focus of GOP pushback on the charges against Trump and his campaign (and Manafort).

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

If Deripaska learned of the dossier — and obtained a copy from McCain or someone close to him — it would make it very easy to lay out the strategy we’re currently seeing.

Victoria Nuland gets ahead of the narrative by explaining her own role in the dossier

Shortly after I asked that question, Nuland (in about the first move that Democrats made to get ahead of the dossier) explained her own role. She had received reports he had done for other people, but when she heard of the Trump dossier, she (wary of Hatch Act violations) said the FBI should take the lead.

Glasser: And so, around this period is also when the famous dossier is starting to circulate. And it’s been reported that you were familiar already—and others were—with the work of Christopher Steele, that he had been a helpful source of information, of analysis and insight over the previous few years. Did you know him personally, or just his work?

Nuland: I did not know him personally. He had—’13, ’14, ’15, he had a number of corporate clients who were interested in who was in the decision-making loop on Ukraine issues in the Kremlin, who was in the—who the back channels were between Ukraine and Russia, and he was generous enough, as many people were in that period, to share their findings and their work with us, and all of us who were trying to understand it as a policy matter were taking all kinds of information. We never—

Glasser: But you weren’t personally debriefing?

Nuland: No, we never worked with him directly. We never tasked him. We never had an official association. His information on Russia and Ukraine was one of hundreds of sources that we were using at the time.

Glasser: When did you first hear about his dossier?

Nuland: I first heard—and I didn’t know who his client was until much later, until 2017, I think, when it came out. I first heard that he had done work for a client asserting these linkages—I think it was late July, something like that.

Glasser: That’s very interesting. And you would have taken him seriously just because you knew that he knew what he was talking about on Russia.

Nuland: What I did was say that this is about U.S. politics, and not the work of—not the business of the State Department, and certainly not the business of a career employee who is subject to the Hatch Act, which requires that you stay out of politics. So, my advice to those who were interfacing with him was that he should get this information to the FBI, and that they could evaluate whether they thought it was credible.

Jones and Deripaska’s roles remain unexplained, even in spite of Jane Mayer’s reporting on the latter

We still hadn’t heard about Jones or Deripaska’s role; Jane Mayer didn’t even clarify the latter in her 15,000 word Steele profile.

Orbis promises confidentiality, and releases no information on its clientele. Some of its purported clients, such as a major Western oil company, are conventional corporations. Others are controversial, including a London law firm representing the interests of Oleg Deripaska, the billionaire victor of Russia’s aluminum wars, a notoriously violent battle. He has been described as Putin’s favorite oligarch. Steele’s possible financial ties to Deripaska recently prompted Senator Grassley to demand more information from the London law firm. If a financial trail between Deripaska and Orbis can be established, it is likely to raise even more questions about Steele, because Deripaska has already figured in the Russia investigation, in an unsavory light. Paul Manafort, Trump’s former campaign manager, has been accused of defrauding Deripaska’s company while working for it in Ukraine. (Manafort has been indicted by Special Counsel Robert Mueller on charges of money laundering and other financial crimes. He has pleaded not guilty.) Even if Steele’s rumored work for Deripaska is aboveboard, it illustrates the transition that he has made from the world of government service to the ethically gray world of commerce. Oligarchs battling other oligarchs provide some of the most lucrative work for investigators with expertise in Russia. Orbis maintains that, as long as its activities are limited to providing litigation support for Western law firms acting in Western courts, it is helping to settle disputes in a more civilized way than they would be in Russia.

Oleg Deripaska’s bid to get ahead of Deripaska disclosures

Which brings us to Deripaska’s column in the (!?!?!) Daily Caller. Deripaska describes himself — in a column released even as Trump rolls out aluminum sanctions and just weeks after he stepped down as President — as “the founder of UC Rusal, the world’s leading producer of aluminum using clean, renewable hydropower.” The column drops a load of American cultural and historical references: Wag the Dog, Teddy Roosevelt, “World War II hero and former U.S. Sen. Daniel Inouye,” and George Soros.

The most remarkable passage, seemingly an attempt to leak where Grassley and Nunes might otherwise go, is this attack on Dan Jones and Nuland.

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Deripaska names Jones as a “self-described former FBI agent,” as if FBI agents here are as thuggish and secretive as FSB agents in Russia. He suggests “we now know from the media” that Jones is “an ex-Feinstein staffer,” as if we don’t know in large part because of the Republican fight against the Torture report in (this is important!) the Senate Intelligence Committee. Then, after explaining on what authority he is sharing all this information — “My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3,” — Deripaska claims third hand that Jones told his lawyer that Fusion is a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.”

Among other things then, this is a very crafty attempt to get information submitted to the close-lipped SSCI, but probably not to SJC or HPSCI where everything leaks, into the public.

So Deripaska, presumably using one hell of a ghost writer, manages to spin a Paul Singer funded effort as a Soros cabal.

As noted above, there’s good reason to believe that Deripaska is the mastermind of the entire strategy of discrediting the dossier as a way to discredit the Mueller investigation. The last time he tried to discredit the investigation directly, prosecutors dinged Paul Manafort for violating the gag rule in the DC case; any bets they have the red line of this effort? Yet the name Manafort doesn’t appear here, so perhaps (especially as Manafort is officially on the clock in EDVA after his arraignment today as well as DC) Deripaska’s just getting around the gag.

As you read this work of art (really!), keep the following in mind: for all that Deripaska puts the focus on Jones and Nuland, he never gets around to explaining why Chuck Grassley thinks he had a role in the dissemination of the dossier, too. Or why he demanded immunity to testify to SSCI. At that level this may be an attempt to get ahead of disclosures about his role in the dossier.

Then, on February 14, Alex Van der Zwaan pled guilty to lying about communications with Deripaska’s flunkie Konstantin Kilimnik, making it clear (if it wasn’t already) that Kilimnik and through him Deripaska are a key focus of Mueller’s investigation.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016.

In addition, some currently sealed transcripts will soon be unsealed in the DC case that may name Kilimnik or Deripaska in more detail.

Oleg Deripaska was the key figure behind the larger conspiracy to defraud the US that Paul Manafort currently serves as the figurehead for. That will become increasingly clear in upcoming days (even assuming jailed sex worker Nastya Rybka’s claims to have recordings on election interference and Deripaska’s role in it never get substantiated), whether through additional Mueller indictments, Steele related disclosures, or reporting that finally explains the latter.

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The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

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I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.

Republican judges approved the Carter Page FISA orders

The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:

 

  • Rosemary Collyer (worst FISC judge ever)
  • Claire Eagan (OK, she may be worse than Collyer)
  • Robert Kugler
  • Michael Mosman (a good one)
  • Dennis Saylor (also good)

I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.

The first reapplication came days after the dossier and a second Isikoff article came out

Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).

As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).

FBI didn’t respond to Isikoff in time for the second application

Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.

FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.

That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.

An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”

It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.

So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.

It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.

But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn. In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.

Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.

Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.

In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.

That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”

Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.

If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.

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New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

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Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

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